In re EPIC - NSA Telephone Records Surveillance

"It is simply not possible that every phone record in the possession of a telecommunications firm could be relevant to an authorized investigation. Such an interpretation of Section 1861 would render meaningless the qualifying phrases contained in the provision and eviscerate the purpose of the Act." - EPIC Mandamus Petition

Wikimedia Sues NSA Over Mass Internet Surveillance: Wikimedia filed a federal lawsuit against the NSA over the mass surveillance of Internet communications. Wikimedia asked the court to halt the government's upstream collection—the practice of directly tapping into the Internet backbone that carries communications across the U.S. Wikimedia argues that upstream collection exceeds statutory authority and violates the First and Fourth Amendments, as well as Article III of the Constitution. Explaining the case, Wikipedia founder Jimmy Wales wrote, "Privacy is an essential right. It makes freedom of expression possible, and sustains freedom of inquiry and association." In 2013, EPIC petitioned the Supreme Court to stop the NSA's bulk telephone metadata program.
(Mar. 10, 2015)

UK Privacy Groups Prevail in GCHQ Spying Case: A British court that oversees intelligence gathering has ruled that GCHQ, the British spy agency, violated international human rights law with the mass collection of cellphone and Internet data. Last year, the same court ruled that data could lawfully be transferred between US and UK intelligence agencies. That earlier decision is on appeal to the European Court of Human Rights in Strasbourg. In 2013, following the disclosure of the "Verizon order," which authorized the NSA's routine collection of US telephone records, EPIC brought a petition to the US Supreme Court, arguing that the agency practice exceeded the "Section 215" authority. Dozens of legal scholars and former members of the Church Committee supported the EPIC petition.
(Feb. 9, 2015)

Schneier: Over 700 Million People Taking Steps to Avoid NSA Surveillance: Famed technologist and EPIC Advisory Board member Bruce Schneier pushed back against media claims that Edward Snowden's revelations about the NSA have had little impact on Internet users. A recent global survey found that 39% of Internet users who have heard of Snowden have taken steps to protect their online privacy. Some news articles have characterized these users as "merely 39%" and "only 39%." But Schneier did the math and found that Snowden’s impact has been far from insignificant: "706 million people have changed their behavior on the Internet because of what the NSA and GCHQ are doing." A recent Pew survey also indicates that the NSA revelations have had a dramatic impact on Internet users. Last year, EPIC filed a petition to the U.S. Supreme Court to stop the NSA's collection of domestic telephone records, following the release of the "Verizon Order." For more information, see EPIC: In re EPIC, EPIC: Smith v. Obama, and EPIC: Foreign Intelligence Surveillance Act Reform.
(Dec. 17, 2014)

British Court Upholds Mass Surveillance by UK Spy Agency: The Investigatory Powers Tribunal, which reviews complaints of unlawful surveillance by Britain's intelligence agencies, ruled that mass collection of online communications is legal. The complaint was brought by several privacy rights groups in the UK and focused on GCHQ's electronic surveillance program, TEMPORA, and information the UK spy agency obtained through NSA's PRISM and Upstream programs. The privacy rights groups plan to appeal the decision to the European Court of Human Rights. EPIC previously challenged the NSA's mass surveillance of U.S. phone records in a 2013 petition to the Supreme Court. EPIC's petition argued that the Foreign Intelligence Surveillance Court exceeded its authority when it ordered Verizon to turn over records on all of its customers to the NSA. The EPIC petition was supported by legal scholars and former members of the Church Committee. For more information, see In re EPIC and EPIC: Foreign Intelligence Surveillance Act Reform.
(Dec. 8, 2014)

Senator Leahy Calls on the President to End Bulk Collection of Phone Records: Today Senator Patrick Leahy (D-VT) urged President Obama to end the dragnet collection of U.S. telephone records under Section 215 of the Patriot Act. The current authorization for the NSA's bulk collection program expires on Friday, December 5, 2014. Senator Leahy's comments follow the recent efforts to pass the USA FREEDOM Act of 2014, which would end the NSA's surveillance program. Senator Leahy said that ending the reauthorization of the program "would not be a substitute for comprehensive surveillance reform legislation - but it would be an important first step." In June EPIC, joined by many organizations, urged the President and Attorney General to end the bulk collection program. And in 2013 EPIC petitioned the Supreme Court, arguing that a special surveillance court exceeded its authority when it ordered Verizon to turn over records on all of its customers to the NSA. For more information, see In re EPIC and EPIC: Foreign Intelligence Surveillance Act Reform.
(Dec. 4, 2014)

Senate Republicans Block US Surveillance Reform: An effort led by Senator Patrick Leahy (D-VT) to pass the USA FREEDOM Act failed on a narrow procedural vote last night. The FREEDOM Act would have ended the NSA's bulk collection of US telephone records. The bill would also improve oversight and accountability of the Foreign Intelligence Surveillance Act. Last year, EPIC petitioned the Supreme Court to suspend the bulk collection of Americans' telephone records. EPIC's petition was supported by dozens of legal scholars and former members of the Church Committee. EPIC also testified in Congress in support of improved reporting for domestic surveillance activities. For more information, see EPIC: Foreign Intelligence Surveillance Act Reform and In re EPIC.
(Nov. 19, 2014)

Senator Leahy Urges Swift Passage of USA Freedom Act: Senator Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee, has urged swift passage of the USA FREEDOM Act, which would end the government's dragnet collection of telephone records. The bipartisan bill, which Senator Leahy introduced in July, would also improve oversight accountability for domestic surveillance activities. It has broad bipartisan support among the Intelligence Community, the technology industry, and privacy advocates. Senator Leahy said "Congress should pass the bipartisan USA FREEDOM Act without delay." Last year EPIC petitioned the US Supreme Court to end the NSA bulk record collection program. Former members of the Church Committee and dozens of legal scholars supported the EPIC petition. For more information, see EPIC: In re EPIC - NSA Telephone Record Surveillance.
(Nov. 13, 2014)

NSA Vows to Disclose Zero-Day Vulnerabilities: In a speech delivered at Stanford University, National Security Agency director Michael Rogers announced that the NSA will no longer stockpile "zero-day exploits", software glitches that could facilitate cyber espionage. In the past, the NSA has kept these vulnerabilities secret for use in counterintelligence. Admiral Rogers announced, "the default setting is if we become aware of a vulnerability, we share it." By disclosing vulnerabilities, the NSA allows software developers to fix the glitches and keep the internet more secure. Admiral Rogers recognized that "'a fundamentally strong Internet is in the best interest of the U.S.'" In December 2013, the President's Review Group on Intelligence and Communications Technologies recommended that "US policy should generally move to ensure that Zero Days are quickly blocked, so that the underlying vulnerabilities are patched on US Government and other networks." The Review Group report contains 45 other similar recommendations that EPIC generally supports and the White House has pledged to adopt. Earlier this year, the NSA's policies on zero-day exploits came under scrutiny when an glitch known as the "Heartbleed bug" threatened to undermine SSL encryption across the entire internet. For more information, see EPIC: In re EPIC and EPIC: NSPD-54 Appeal.
(Nov. 13, 2014)

Federal Appeals Court to Hear Challenge to NSA Surveillance Program: The U.S. Court of Appeals for the D.C. Circuit is scheduled to hear arguments tomorrow (November 4, 2014) in Klayman v. Obama, a challenge to the NSA's domestic surveillance program. Klayman is one of severalcases challenging the NSA's ongoing collection of domestic telephone records. In the Klayman case, Judge Richard Leon ruled that the NSA likely violated the Fourth Amendment. The government has appealed that decision. In a related case before the Ninth Circuit, EPIC filed an amicus curiae brief, arguing that communications data should be protected under the Fourth Amendment and that the 1979 decision Smith v. Maryland no longer applies, given the evolution of modern communications technology. Last year EPIC petitioned the US Supreme Court to end the NSA program, arguing that the Foreign Intelligence Surveillance Court exceeded its authority when it ordered Verizon to turn over all domestic call records to the NSA. The EPIC Petition was supported by legal scholars, technical experts, and former members of the Church Committee. For more information, see EPIC: Klayman v. Obama, EPIC: Smith v. Obama, In re EPIC.
(Nov. 3, 2014)

FCC Levies $10 Million Fine Against Carriers for Breach of Consumer Privacy: The Federal Communications Commission announced today its largest privacy fines to date. The agency's first data security case stems from an investigation of TerraCome and YourTel American who "stored Social Security numbers, names, addresses, driver's licenses, and other sensitive information belonging to their customers on unprotected Internet servers that anyone in the world could access." The carriers will be fined $10 million for their breach of consumer privacy. Last month, the FCC reached a $7.4 million settlement with Verizon over privacy violations. EPIC previously urged the FCC to determine whether Verizon violated the Communications Act when it released consumer call detail information to the National Security Agency. Also, in response to a 2005 EPIC petition, the FCC strengthened privacy protections for telephone records, which EPIC defended in a "friend of the court" brief for the DC Circuit, establishing support for opt-in privacy safeguards. For more information, see EPIC: NCTA v. FCC (Concerning privacy of CPNI) and In re EPIC (NSA Telephone Records Surveillance).
(Oct. 24, 2014)

New Report Reviews Progress on Signals Intelligence Reform: The Office of the Director of National Intelligence has released the first report on the implementation of Presidential Policy Directive 28. In January, the President proposed a revised policy for foreign signals intelligence. Under the revised directive, PPD-28, intelligence agencies are required to "review and update" their policies and "establish new ones as necessary" to safeguard personal information collected through signals intelligence. Signals intelligence activities must also be "as tailored as feasible," and there must be limitations on the querying, use, dissemination, and retention of personal information. The report states that all intelligence agencies in place by January 17, 2015, one year after the President's speech. EPIC previously challenged the NSA's bulk collection of domestic and international call detail records. EPIC has also filed Freedom of Information Act requests with the NSA and other intelligence agencies elements seeking disclosure of current procedures regarding surveillance conducted under Executive Order 12333. For more information, see EPIC: EO 12333 and In re EPIC.
(Oct. 23, 2014)

Appeals Court Limits Military Surveillance of Civilian Internet Use: The U.S. Court of Appeals for the Ninth Circuit ruled in United States v. Dreyer that an agent for the Naval Criminal Investigative Service violated Defense Department regulations and the Posse Comitatus Act when he conducted a surveillance operation in Washington state to identify civilians who might be sharing illegal files. The 1878 Act prevents the U.S. military from enforcing laws against civilians. The appeals court ruled that the NCIS intrusion into civilian networks showed “a profound lack of regard for the important limitations on the role of the military in our civilian society.” The court also ruled that the evidence obtained by NCIS should be suppressed to “deter future violations.” In a petition to the Supreme Court, EPIC challenged the NSA’s surveillance of domestic communications. The NSA is a component of the Department of Defense. For more information, see In re EPIC and EPIC v. DOJ: Warrantless Wiretapping Program.
(Sep. 26, 2014)

Senator Leahy Introduces Bill to End NSA Bulk Record Collection: Today Senator Patrick Leahy (D-VT), joined by Democratic and Republican Senators, introduced legislation to end the NSA's practice of collecting telephone records of Americans. Leahy described the bill as "the most significant reform of government surveillance authorities since Congress passed the USA PATRIOT Act 13 years ago." The USA Freedom Act would require require the government to specify specific "search terms" to obtain telephone record information. The government would have to demonstrate that it has a "reasonable, articulable suspicion" that the search term is associated with a foreign terrorist organization. The bill also requires a comprehensive transparency report for the use of FISA surveillance authorities. However, the bill exempts the FBI from certain reporting requirements. Civil liberties organizations support the bill. EPIC previously filed a Petition for Mandamus with the U.S. Supreme Court, seeking to end the bulk collection of American's phone records. EPIC's petition was supported by legal scholars, technical experts, and former members of the Church Committee. For more information, see In re EPIC and EPIC: FISA Reform.
(Jul. 29, 2014)

Privacy Panel Backs PRISM Program: In a surprising report, the US Privacy and Civil Liberties Oversight Board has endorsed the US government's routine collection of the Internet activities of non-US persons, broadly referred to as the "PRISM Program." The NSA obtains this information from Internet companies located in the United States. The Board cited the value of the program and compliance with the law, but said little about the impact on non-US persons. EPIC opposed a similar program concerning the collection of domestic telephone records in a petition to the US Supreme Court last year. EPIC has also said that the collection of communications by the US should be subject to international privacy law, such as the International Covenant on Civil and Political Rights. It is anticipated that foreign countries will continue to transfer cloud-based services away from US firms because of the lax privacy safeguards in the United States. For more information, see EPIC: In re EPIC and EPIC: International Privacy Standards.
(Jul. 3, 2014)

Obama Renews Unlawful NSA Bulk Record Collection Program: Today the Attorney General and the Director of National Intelligence announced that the President will seek a renewal of the court order authorizing the NSA's bulk collection of American telephone records through September 12, 2014. The President has chosen to renew this order despite his promise in March 2014 to end the bulk collection program and the widespread opposition from members of Congress, and the recommendations of expert panels. The Attorney General's statement suggests that "legislation would be required" to end the program, but it was the President's decision to seek renewal of the Foreign Intelligence Surveillance Court order. EPIC, along with 25 other privacy organizations, wrote a letter to the President last week urging him not to renew the order. Last summer, EPIC petitioned the Supreme Court to end the NSA's telephone record collection program. EPIC's argued that the Foreign Intelligence Surveillance Court exceeded its authority when it ordered the production of all domestic telephone records. For more information, see In re EPIC.
(Jun. 20, 2014)

Coalition to President: End NSA's Bulk Collection Program Now: EPIC and a coalition of 25 organizations urged the President and the Attorney General to end the NSA's bulk record collection program when the current authority expires on June 20. In January, the President committed to "end the Section 215 bulk metadata program as it currently exists." The coalition letter states, "[t]he NSA's Bulk Metadata program is simply not effective." Both the Privacy and Civil Liberties Oversight Board report and the President's Review Group report found the NSA's bulk collection to be ineffective. EPIC petitioned the Supreme Court to end the NSA's bulk collection of telephone records after the program was revealed last summer. EPIC's petition argued that the Foreign Intelligence Surveillance Court exceeded its authority when it ordered the production of all domestic telephone records. For more information, see In re EPIC.
(Jun. 17, 2014)

House Judiciary Committee to Consider Bill to End Bulk Surveillance, Improve NSA Oversight: The House Judiciary Committee has scheduled a markup of the USA Freedom Act. The proposed "Manager's Amendment", sponsored by James Sensenbrenner (R-WI), would prevent bulk collection of phone records and other business records, and would limit the scope of phone record searches. The bill would also (1) limit the collection of US persons communications by the NSA's PRISM program, (2) require public reports on the use of FISA surveillance, (3) require declassification of significant FISA Court opinions, and (4) create a public advocate at the FISA Court. In 2012, EPIC testified before the House Judiciary Committee on the need for public reports and the declassification of significant FISC opinions. In 2013, EPIC filed a petition with the Supreme Court, alleging that the bulk collection of telephone record was unlawful. For more information, see EPIC: FISA Reform and In re EPIC.
(May. 5, 2014)

European High Court Strikes Down Data Retention Law: In a far-reaching and dramatic opinion, the European Court of Justice has ruled that the mass storage of telecommunications data violates the fundamental right to privacy and is illegal. The Data Retention Directive required telephone and Internet companies to keep traffic and location data as well as user identifying information for use in subsequent investigations of serious crimes. According to the Court, the Directive imposed "a wide-ranging and particularly serious interference with the fundamental rights to respect for private life and to the protection of personal data, without that interference being limited to what is strictly necessary." The Court found that the collection of metadata constitutes the processing of personal data and must therefore comply with Article 8 of the Charter of Rights. The Court also said to find a privacy violation, "it does not matter whether the information on the private lives concerned is sensitive or whether the persons concerned have been inconvenienced in any way." Last year EPIC, joined by dozens of legal scholars and former members of the Church Committee, urged the US Supreme Court to find the NSA's telephone record collection program unlawful. For more information, see EPIC - Data Retention, In re EPIC.
(Apr. 8, 2014)

President Obama Renews Unlawful, Ineffective Surveillance Authority:According to the Attorney General and the Director of National Intelligence, President Obama has renewed the NSA's authority to collect all of the telephone records of all American telephone customers. The "Section 215" program exceeded Congressional authority and was found to be ineffective by two expert panels. At a speech on January 17, 2014, President Obama ordered a transition that will end the Section 215 bulk telephony metadata program as it currently exists. However, according to DNI Clapper, the United States filed an application with the FISC to reauthorize the existing program as previously modified for 90 days, and the FISC issued an order approving the government's application. The order issued expires on June 20, 2014. EPIC and others have strongly objected to the renewal of the 215 program. For more information, see EPIC In re EPIC.
(Mar. 29, 2014)

Senator Leahy Urges President to End NSA Record Collection Program on Friday: In remarks published this week, Senator Patrick Leahy, Chairman of the Senate Judiciary Committee and co-sponsor of the USA FREEDOM Act, said "I welcome the President's statement that he plans to end the bulk collection of American’s phone records. That is a key element of what I and others have outlined in the USA FREEDOM Act, and that is what the American people have been demanding." Senator Leahy added, "the President could end bulk collection once and for all on Friday by not seeking reauthorization of this program. Rather than postponing action any longer, I hope he chooses this path." EPIC and others have urged the President not to renew the NSA telephone record collection authority when it expires this week. For more information, see In re EPIC.
(Mar. 27, 2014)

In FOIA Lawsuit, EPIC Obtains Secret Reports on Data Collection: In a Freedom of Information Act lawsuit, EPIC has obtained reports that detail the number of times the Surveillance Court authorized the use of techniques that gather the telephone numbers and metadata of phone customers and Internet users. The previously secret reports obtained by EPIC cover the period between 2000 and 2013. The reports reveal a dramatic increase in the use of these techniques in 2004 and then a significant reduction in 2008, likely the consequence of a shift to other investigative techniques. The documents show that nearly all applications to the Surveillance Court were approved without modifications. In 2013, EPIC petitioned the Supreme Court to end the bulk telephone record collection program. Former members of the Church Committee and dozens of legal scholars supported the EPIC petition. For more information see: EPIC v. Department of Justice - Pen Register Reports, EPIC: Foreign Intelligence Surveillance Court Orders 1979-2012, and In re EPIC.
(Mar. 3, 2014)

Oversight Board Calls for End of NSA Telephone Records Program: Today the Privacy and Civil Liberties Oversight Board called for the end of the section 215 program that allows the NSA to collect the telephone records of all Americans. In a comprehensive report, the Oversight Board unanimously found that "the NSA's Section 215 program has not proven useful in identifying unknown terrorists or terrorist plots" and that "telephone calling records, when collected in bulk and subjected to powerful analytic tools, can reveal highly sensitive personal information." A majority of the board also concluded that Section 215 did not permit the routine collection of all telephone records on all Americans. The report set out 12 recommendations discussing additional privacy safeguards, greater transparency, and improvements to the Foreign Intelligence Surveillance Court. The members of the Oversight Board unanimously supported almost all of the recommendations. EPIC urged the Board last year at a public workshop to (1) find that section 215 does not permit the collection of all telephone records by the NSA; (2) improve reporting of FISA activities; (3) establish new safeguards for transparency and accountability; and (4) reconsider the Constitutional basis of metadata collection in light of the scope of the government's activities and recent Supreme Court opinions. EPIC had earlier petitioned the Supreme Court to find the 215 program unlawful. Former members of the Church Committee and dozens of legal scholars supported the EPIC petition. For more information, see EPIC: In re EPIC - NSA Telephone Record Surveillance.
(Jan. 23, 2014)

Review Group to Senate: NSA Program Has Not Prevented Threats: Members of the President's Review Group presented their recommendations for NSA reform a Senate Judiciary Committee hearing. EPIC participated in the work of the Review Group. The export panel set out 46 recommendations on a range of issues from reforming intelligence surveillance directed at United States persons to promoting prosperity, security, and openness in the networked world. The Members stated the the NSA's bulk collection of metadata had not prevented threats against the United States and recommend that the it be ended. Acknowledging privacy concerns, former CIA Deputy Director Michael Morrell also stated that "there is quite a bit of content in metadata." Last year, EPIC filed a petition in the Supreme Court challenging the legality of the NSA's telephone record collection program. Legal scholars and former members of the Church Committee supported the EPIC petition. The Supreme Court dismissed the petition without ruling on the merits. For more information, see In re EPIC."there is quite a bit of content in metadata" - Morrell, former CIA Deputy Director
(Jan. 15, 2014)

NY Judge Rules NSA Program Legal, Split Emerges Among Courts: A federal judge in New York has ruled that the NSA's telephone metadata program is legal. The ruling comes less than two weeks after a federal judge in Washington, DC issued an injunction against the telephone record collection program—calling it an "unreasonable search under the Fourth Amendment." The opinions create a split amongst the district courts as to the legality of the NSA's program. Both opinions are expected to be appealed. The President's Review Group recently released its report recommending the end of the NSA's bulk collection of telephony metadata. EPIC filed a Petition in the U.S. Supreme Court challenging the legality of the program, shortly after the disclosure earlier this summer. For more information, see In re EPIC and EPIC: FISC Verizon Order.
(Dec. 30, 2013)

Expert Panel Calls for End of NSA Bulk Data Collection: The President's Review Group on Intelligence and Communications Technologies has concluded that the NSA’s collection of bulk telephone records should end. In a sweeping report "Liberty and Security in a Changing World," the review panel set out 46 recommendations, which would limit NSA surveillance, expand judicial oversight, create new transparency requirements, update federal privacy laws, and create a new privacy agency. Other recommendations include the application of the Privacy Act of 1974 to both U.S. and non-U.S. persons, support for strong encryption techniques, and the cessation of U.S. practice of stockpiling software vulnerabilities known as "zero day" exploits. Earlier this year, EPIC met with the review group and submitted extensive comments to the panel, specifically urging the end of the bulk record collection program. EPIC had earlier petitioned the Supreme Court to find the program unlawful. For more information, see EPIC: In re EPIC - NSA Telephone Record Surveillance.
(Dec. 19, 2013)

Federal Judge Enjoins Telephone Metadata Program, NSA Likely Violated Fourth Amendment: A federal judge today issued an injunction against the NSA telephone record collection program. Judge Leon ruled that the plaintiffs "have a substantial likelihood of showing that their privacy interest outweigh the Governments interest in collecting and analyzing bulk telephony metadata and therefore the NSA's Bulk Metadata program is indeed an unreasonable search under the Fourth Amendment." Judge Leon also stressed that "While Congress has great latitude to create statutory schemes like FISA, it may not hang a cloak of secrecy over the Constitution." This is the first court opinion issued on the controversial surveillance program. EPIC filed a Petition in the U.S. Supreme Court challenging the legality of the the program, shortly after the disclosure earlier this summer. The decision of the district court will be stayed pending an appeal by the government to the DC Circuit Court of Appeals. For more information, see In re EPIC and EPIC: FISC Verizon Order.
(Dec. 16, 2013)

Presidential Task Force to Recommend Changes at NSA : The Review Group on Intelligence and Communications Technologies, established to recommend surveillance reforms, will send a final report to the President this Sunday. According to one news article, the task force will recommend putting a civilian leader in charge of NSA, separating out the code-breaking "Information Assurance Directorate," and splitting the U.S. Cyber Command off into a separate military unit. The Review Group will also recommend new limits on the NSA’s ability to search telephone call records, proposing that telephone records be stored with a third party rather than the NSA. The group will also recommend safeguards for the data of European citizens, and restrictions on the use of National Security Letters. Earlier this year, EPIC filed a petition with the U.S. Supreme Court, supported by legal scholars and former members of the Church Committee, arguing that the NSA bulk collection program was unlawful. For more information, see EPIC: Foreign Intelligence Surveillance Act, EPIC: Foreign Intelligence Surveillance Act Reform, and EPIC: In re EPIC.
(Dec. 13, 2013)

EPIC Urges FCC to Investigate AT&T’s Practice of Selling Consumer Phone Records: In a letter to Federal Communications Commission Chairman Tom Wheeler, EPIC urged the FCC to determine whether AT&T violated the Communications Act when it sold private consumer call detail information to the Drug Enforcement Administration and Central Intelligence Agency. EPIC's letter follows an earlier letter where EPIC asked the FCC to resolve whether Verizon violated the Communications Act when it released consumer call detail information to the National Security Agency. EPIC's letter also informed the Commission that the National Association of Regulatory Utility Commissioners has issued a draft resolution underscoring the crucial role of the FCC in protecting consumer information. For more information, see EPIC: In re EPIC and EPIC: Foreign Intelligence Surveillance Act.
(Nov. 18, 2013)

Supreme Court Declines EPIC's Challenge to NSA Domestic Surveillance Program, Leaves in Place Order of Surveillance Court: Today the Supreme Court denied review of In re EPIC, a direct challenge to the NSA telephone record collection program. EPIC argued that an order of the secretive Surveillance Court that required Verizon to turn over all customer records exceeded legal authority. "It is simply not possible that every phone record in the possession of Verizon is relevant to a national security investigation," EPIC stated. EPIC asked the Supreme Court to overturn the order of the Foreign Intelligence Surveillance Court. Prominent legal scholars and members of the Church Committee who wrote the law agreed. Four groups filed amicus briefs in support and urged the Supreme Court to grant EPIC’s petition. However, the Supreme Court, without comment, declined to hear the case. For more information, see In re EPIC, In re EPIC Press Release.
(Nov. 18, 2013)

Privacy Groups to FTC: Investigate Role of US Firms in NSA Surveillance: Consumer privacy organizations in the US have asked the Federal Trade Commission to determine whether US companies turned over private customer data to the National Security Agency. "We urge you to open an investigation to determine whether any failure by these companies to comply with the Commission's orders may have contributed to the improper disclosure of customer data," the groups wrote. The organizations, which have brought many privacy complaints to the FTC, stated that the disclosure of user data "directly implicates the jurisdiction of the Federal Trade Commission." According to the organizations, "it is inconceivable that when faced with the most significant breach of consumer data in U.S. history, the Commission could ignore the consequences for consumer privacy." EPIC previously wrote to the Federal Communications Commission regarding the unlawful provision of call detail records to the NSA. The Supreme Court is scheduled to consider EPIC's challenge to the NSA telephone record collection program at conference this week. For more information, see In re EPIC.
(Nov. 13, 2013)

Supreme Court to Consider EPIC Challenge to NSA Program This Week: The Supreme Court is scheduled to consider EPIC's challenge to the NSA telephone record collection program at conference this week. EPIC has asked the Court to overturn an order of the Foreign Intelligence Surveillance Court that compelled Verizon to produce all of the telephone records of all of its customers to the NSA. EPIC said that this order clearly exceeded the authority of the surveillance court. The EPIC Petition was distributed to the Justices last week along with briefs by former Church committee members and prominent scholars in information law, federal jurisdiction, and constitutional law, who all urged the Supreme Court to grant the EPIC petition. For more information, see In re EPIC.
(Nov. 12, 2013)

Leahy and Sensenbrenner Introduce USA FREEDOM Act: The Democratic Chair of the Senate Judiciary Committee and the Republican author of the Patriot Act have introduced the USA FREEDOM Act, which would reform the Foreign Intelligence Surveillance Act and limit NSA surveillance activities. A bi-partisan coalition, including 17 Senators and 70 Members of Congress, have joined as original co-sponsors. Key provisions of the FREEDOM Act increase transparency of intelligence activities, prevent end-runs around the FISA Court, and improve public reporting. In 2012 EPIC testified before the House Judiciary Committee about the need to reform FISA and to improve oversight of the FISA court. The FREEDOM Act also ends the controversial bulk phone records collection program. EPIC has brought a challenge in the Supreme Court to the phone records program, explaining that it is unlawful under current law. For more information, see EPIC: In re EPIC and EPIC - Foreign Intelligence Surveillance Act.
(Oct. 29, 2013)

Factual Background

The Verizon Order

On June 5, 2013, a secret Foreign Intelligence Surveillance Court ("FISC") order allowing the Federal Bureau of Investigation ("FBI") and the National Security Agency ("NSA") to obtain vast amounts of telephone call data of Verizon customers was made public. The order, issued April 25, 2013, does not link this data collection to any specific target or investigation, but instead grants sweeping authority compelling Verizon to produce to the NSA "all call detail records or 'telephony metadata' created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls." As a result, the NSA collected the telephone records of millions of Verizon customers, including those who only make calls to other U.S. numbers. Senator Diane Feinstein, Chairwoman of the Senate Intelligence Committee, has confirmed that this FISC Order is part of an ongoing electronic communications surveillance program that has been reauthorized since 2007. EPIC is a Verizon customer, and has been for the entire period the FISC Order has been in effect. Because the FISC Order compels disclosure of "all call detail records," EPIC's telephone metadata are subject to the order and have been disclosed to the NSA.

The NSA's History of Domestic Electronic Surveillance

The NSA has coordinated signals intelligence activities since its inception in 1952. Despite its directive to collect and analyze foreign intelligence, the NSA has often engaged in domestic surveillance. In the mid 1970s, the Church Committee discovered that the NSA had routinely collected the private communications of U.S. persons from U.S. telegraph companies through 1975 under Operation SHAMROCK. The NSA also targeted the international communications of specific American citizens from the 1960s through 1973. More recently, the NSA collaborated with other intelligence organizations on a program known as "ECHELON," a data sharing agreement involving the UK, the USA, Canada, Australia and New Zealand for the purposes of intelligence interception. ECHELON allowed for the automatic pooling of all signals intelligence data. The NSA is currently building a $2 billion data center in Bluffdale, Utah that will encompass 1 million square feet, with 100,000 square feet reserved for servers.

Originally passed in 1978, the Foreign Intelligence Surveillance Act ("FISA") established a set of rules to govern collection of data from targets with foreign connections. While ordinary law enforcement surveillance was subject to the more stringent guidelines of the Wiretap Act (later amended by the Electronic Communications Privacy Act), FISA offers the government greater leeway when surveillance is used to collect "foreign intelligence." FISA initially covered only electronic eavesdropping, but was subsequently amended to include other types of surveillance as well.

The USA PATRIOT Act, Section 215

Passed in 2001, the USA-PATRIOT Act added several amendments to the FISA. Notably, section 215 of the Act, known as the "Business Records Provision," authorizes the collection of "any tangible things" when the government can show "reasonable grounds" that such a collection is "relevant to an authorized investigation" to obtain foreign intelligence or protect against international terrorism. Compared to the original standard in the FISA, which allowed for surveillance only if the government could show that the target was a foreign power or an agent of a foreign power, this provision greatly expanded the volume of communications accessible under FISA.

Section 215 also requires the Attorney General to enact minimization procedures to limit the dissemination and retention of data incidentally collected on United States persons that serves no foreign intelligence purpose. These procedures have not yet been made public.

The Foreign Intelligence Surveillance Court

FISA established a special court called the FISC,composed of 11 federal district court judges designated by the Chief Justice. The FISC reviews the government's applications for authorization of foreign intelligence surveillance, including applications for surveillance of specific targets as well as applications for business records under section 215. All proceedings of the FISC are classified and closed to the public. The government's applications are made without any opposing party present at the court. The FISA and the Court rules dictate that only the holder of the business records may challenge an order before the FISC.

In reviewing an application for business records, a FISC judge must find that there are "reasonable grounds" to believe that the tangible things sought are relevant to an authorized investigation. In 2012, 212 applications for business records were made to the FISC. The FISC granted all of these applications.

Though the FISC's initial determination is non-adversarial and made only based on the statement of facts presented by the government, the recipient of a FISC order may challenge the order in accordance with rules published by the FISC. If a FISC judge finds that the order is unlawful or does not comply with other parts of section 215, the judge may modify or set aside the order. Any decision made by the FISC in review of an order may also be reviewed by the FISC court of review, should the government or the recipient of a FISC order wish to challenge the FISC's review of an order. Only the government and the recipient of a FISC order may petition for review in the FISC or the FISC court of review.

EPIC's Mandamus Petition to the Supreme Court

EPIC petitioned the Supreme Court to halt the disclosure of the telephone records of millions of Americans, arguing that the FISC did not have legal authority to compel Verizon to turn over all domestic telephone "metadata" to the NSA.

Questions Presented

"Whether the Foreign Intelligence Surveillance Court exceeded its narrow statutory authority to authorize foreign intelligence surveillance, under 50 U.S.C. 1861, when it ordered Verizon to disclose records to the National Security Agency for all telephone communications 'wholly within the United States, including local telephone calls.'"

"Whether Petitioner is entitled to relief pursuant to 28 U.S.C. 1651(a) to vacate the order of the Foreign Intelligence Surveillance Court, or other relief as this Court deems appropriate."

EPIC's Mandamus Petition

EPIC sought a writ of mandamus from the Supreme Court to vacate the Verizon Order. A writ of mandamus is a command by a higher court to a lower court or government official. Mandamus is appropriate when a lower court has exceeded its lawful authority. The United States Supreme Court has laid out three conditions that must be fulfilled before a writ of mandamus can be issued: (1) the party must have no other adequate means to attain the relief they deserve, (2) the party must satisfy the burden of showing that their right to issuance of the writ is clear and indisputable, and (3) the issuing court must be satisfied that the writ is appropriate under the circumstances.

"Mandamus relief is warranted because the FISC exceeded its statutory jurisdiction when it ordered production of millions of domestic telephone records that cannot plausibly be relevant to an authorized investigation." - EPIC Mandamus Petition

In this case, EPIC cannot gain relief from any other court other than the Supreme Court. Normally, when a court issues an unlawful order, the adversely affected parties can intervene or appeal to a higher court. However, the FISC and Foreign Intelligence Surveillance Court of Review are the only courts with jurisdiction to hear petitions by the Government or recipients of the FISC Order. Neither party to the order represents EPIC's interests. As EPIC is not a recipient of the order, it cannot challenge it in the FISC. Other federal and state trial and appellate courts have no jurisdiction over the FISC, and therefore cannot grant relief.

The FISC order exceeded the scope of the FISC's jurisdiction under the FISA. The FISA requires that production orders be supported by "reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation. . ." However, we now know that the FISC issued an order requiring disclosure of records for all telephone communications "wholly within the United States, including local telephone calls." It is simply unreasonable to conclude that all telephone records for all Verizon customers in the United States could be relevant to an investigation. Such an interpretation would eliminate the FISA's core limiting principle and check on executive authority. A writ of mandamus is a proper judicial remedy to rectify the FISC's exceeding of its statutory authority.

"To define the scope of the records sought as 'everything' nullifies the relevance limitation in the statute. If law enforcement has 'everything,' there will always be some subset of 'everything' that is relevant to something. At that level of breadth, the relevance requirement becomes meaningless." - EPIC Mandamus Petition

The NSA surveillance has created extraordinary circumstances. The records acquired by the NSA under the FISC Order detail the daily activities, interactions, personal and business relationships, religious and political affiliations, and other intimate details of millions of Americans. Surveillance of all domestic telephone records exposes confidential and privileged associations. It chills free expression − political, associative, religious, or otherwise. And because the NSA sweeps up judicial and Congressional communications, it inappropriately concentrates power to the Executive Branch by allowing them to surveil the constitutionally mandated roles of the other branches of government.

The FISC Order also mandates that Verizon produce data about EPIC's confidential attorney-client relationships and other privileged information. At present, EPIC is in litigation with both the NSA and FBI, the two agencies responsible for tracking Americans' private communications under this order. EPIC also has ongoing FOIA lawsuits against other elements of the Intelligence Community, including the Office of the Director of National Intelligence and the Central Intelligence Agency. Further, by ordering surveillance of all Verizon customers, the FISC permitted the NSA to gather the metadata of EPIC's conversations with consumers, advisors and advisees, donors, other privacy advocates, Members of Congress, agency officials, and journalists. This surveillance chills those communications and associations that are protected by the First Amendment.

"The records acquired by the NSA under this Order detail the daily activities, interactions, personal and business relationships, religious and political affiliations, and other intimate details of millions of Americans." - EPIC Mandamus Petition

For these reasons, EPIC asked the Supreme Court to issue a writ of mandamus and prohibition to stop the order of the FISC court, or to grant a writ of certiorari to review the legality of its order. However, on November 18, 2013, the Supreme Court declined to hear EPIC's writ of mandamus without comment.

Amici Curiae in Support of EPIC's Mandamus Petition

Privacy Law Scholars Argue That NSA Telephone Surveillance Is Unlawful

A group of leading professors of privacy and surveillance law have written a "friend of the court" brief supporting EPIC's mandamus petition to the U.S. Supreme Court. The professors analyze in detail the NSA's claimed legal authority for the program, Section 215 of the Patriot Act, and find that the bulk collection of telephone metadata is unlawful. "The government's defense of the Verizon Order reflects a significant rewriting of the law and permits the illegal construction of a comprehensive database of data about U.S. persons' communications." The brief focuses on the language of the Foreign Intelligence Surveillance Act (FISA) and the Patriot Act to argue that the FISA Court did not have authority to order Verizon to produce all domestic call detail records. The professors explain that 1) the program does not meet the strict legal standard of the statute's text, 2) the program is contrary to the Executive Order governing intelligence operations, and 3) the domestic telephone surveillance program violates provisions of the Patriot Act that safeguard First Amendment-protected speech.

Former Church Committee Members and Law Professors Outline History of Domestic Surveillance and the Need for Oversight

Former Vice President Walter Mondale and former Senator Gary Hart, members of the 1970's Church Committee, joined by constitutional law expert Erwin Chemerinsky and twenty-eight other law professors, have filed a "friend of the court" brief in support of EPIC's mandamus petition to the U.S. Supreme Court. The amici describe how the NSA has a history of conducting broad and invasive domestic surveillance under the guise of foreign intelligence programs. "The illegal activities, abuse of authority, and violations of privacy uncovered by the [Church] Committee spurred Congress to pass the Foreign Intelligence Surveillance Act." The brief discusses two unlawful NSA programs: Project MINARET, which warrantlessly monitored communications of U.S. citizens on a government watchlist, and Operation SHAMROCK, which intercepted international telegraph traffic passing through the U.S. The FISA, the amici explain, was meant to stop these sorts of programs and prevent agencies from using foreign intelligence authorities as an excuse for domestic surveillance.

Professors James E. Pfander and Steven I. Vladeck have filed a "friend of the court" brief in support of EPIC's mandamus petition to the U.S. Supreme Court. The amici argue that the Supreme Court has the power to grant mandamus relief in this case because the writ of mandamus "would be in aid of the Court's appellate jurisdiction," and because "adequate relief for Petitioner's claims cannot be obtained in any other form or from any other court." The amici also argue that EPIC clearly has Article III standing to seek relief because its telephone records are subject to the Verizon order. The brief makes clear that review of the unlawful FISC order is properly before the Supreme Court, and that the Court has the power to grant the relief that EPIC seeks.

Cato Institute Argues That the Verizon Order Is Unconstitutional

The Cato Institute has filed a "friend of the court" brief in support of EPIC's mandamus petition to the U.S. Supreme Court. Cato argues that the Verizon order is not only unlawful under the FISA, it is unconstitutional. Cato argues that the Verizon order is a "general warrant," which the Fourth Amendment was designed to prevent, and that the Court's recent decision in United States v. Jones shows that "EPIC has a legal and constitutional interest in data about its telephone calls." The brief makes clear that the bulk collection of domestic telephone records is an unlawful and unconstitutional interference with the property and statutory rights of EPIC and other Verizon customers.

FISC Documents

Amended Memorandum Opinion and Primary Order, In re Application of the Federal Bureau of Investigation for an Order Requiring Production of Tangible Things from [REDACTED], BR 13-109 (FISC Aug. 23, 2013) (Granting Order for Bulk Metadata Collection Under Section 215)

Secondary Order, In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from Verizon Business Network Services Inc. on Behalf of MCI Communication Services Inc. D/B/A Verizon Business Services, BR 13-80 (FISC Apr. 25, 2013) (Verizon Order)

Primary Order, In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from Verizon Business Network Services Inc. on Behalf of MCI Communication Services Inc. D/B/A Verizon Business Services, BR 13-80 (April 25, 2013)